Volume 199 — Alabama Reports

<p>Bill to Redeem Land from Mortgage- Sale</p> <p>1. Mortgages; Redemption; Foreclosure. — A bill to redeem land from mortgage foreclosure sale which does not allege any fact to show that the sale was improperly or irregularly made does not show that the mortgagor had any equity of redemption and therefore a deed from the mortgagor would assign only his statutory right of redemption.</p> <p>2. Same. — A bill seeking to redeem land from mortgage foreclosure sale failing to show a tender of the purchase price, or an excuse for not tendering it, as provided by section 5748, Code 1907, was defective.</p> <p>3'. Same. — The fact that the bill attempted to set up a good excuse for not tendering the money to the purchaser did not relieve complainant from ' averring a present tender by payment of money in court.</p> <p>4. Bankruptcy; Mortgage Foreclosure; Redemption, — Although the trustee in bankruptcy is an assignee in contemplation of the redemption statutes, yet the right to redeem land from a mortgage sale does not extend under the statute to a grantee or assignee of the trustee in bankruptcy.</p>

<p>Ejectment.</p> <p>1. Appeal and Error; Who May Appeal. — An appeal from an adverse ruling by one not a party to the suit will not be considered.</p> <p>2. Same; Review; Finding of Court. — Where the evidence is conflicting conclusion of facts found by the trial court will not be disturbed on appeal although seemingly against the preponderance of the evidence.</p>

<p>Appeal from Cleburne Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by W. W. Falkner against W. J. Fowler and others to enforce a vendor’s lien, and for general relief. From a decree overruling demurrers to the bill, respondents appeal.</p> <p>The allegations of the bill are: That on March, 1914, complainant sold the land to Fowler for the sum of $3,150, of which $1,042 was paid in cash, and executed and delivered to Fowler a warranty deed. That at the time of said sale Fowler stated and represented to complainant that he held and was the owner of the following described promissory or title and lien notes, payable to himself and signed by B. F. Snow, E. C. Snow, and C. H. Hand: (Here follows a description of the notes, all of which amounted in the aggregate to $2,108, which was the remaining amount of the purchase money). And respondent represented that the notes were title notes retaining title to 3 acres of land and machinery located thereon, including a complete sawmill outfit, and gin outfit, ginhouse, millhouse, and dwelling house, and that all this was bound for the payment of said notes, and all was well worth $4,000, and Fowler stated and represented to complainant that by taking said notes, the remainder of the purchase money would be doubly secured, as complainant would have a lien upon the 210 acres of land for purchase money, as well as the lien on the property mentioned in the note, and that the payors of said notes were solvent. Complainant avers that at the time of said sale he was ignorant of and did not know what it took to constitute a title note, or a note retaining title to property, and that the notes above described did not retain title to any property as described in the fourth paragraph of the bill, neither were they prepared by W. B. Merrill as alleged by Fowler, and that Fowler knew at the time he made the statement about the notes that they were not true, and that he made said statement and representations falsely and fraudulently, knowing at the time that they were false, and for the purpose of defrauding complainant of his rights, Lon Richardson is averred to be in possession of the lands as tenant of Fowler. The bill offers to surrender the notes set out, and brings them into court, and offers to do equity. There is an averment of insolvency as to the makers of the notes, and an averment that this was unknown to complainant until some time in November, 1915.</p>

<p>Certiorari to Review Action, of Public Service Commission.</p> <p>1. Public Service Commissions; Cerltiorari; Scope of Review. — On certiorari to review a proceeding of the public service commission where the court has not before it the evidence or facts upon which the commission proceeded, its inquiry is limited to whether the commission had jurisdiction and the regularity of such proceeding, as it can only answer the questions raised on the face of the record.</p> <p>2. Constitutional Law; Legislative Powers; Delegation. — Acts 1915, p. 268, conferring upon the public service commission jurisdiction to determine whether a sale, conveyance, or lease of the property and franchises of a public utility is consistent with the interests of the public, was a proper delegation of the legislative power, since while the legislature cannot delegate its power to make a law it can make a law to delegate a power to determine some fact or state of things upon which the law makes its own action depend.</p> <p>8. Constitutional Law; Validity of Statute. — A statute need not enjoin obedience to the Constitution, as the inhibition of the Constitution will be read into the statute and given effect.</p> <p>4. Public Service Commissions; Powers; Sale of Public Utilities; Objections; Determination. — Acts 1915, p. 268, conferring on the public service commission power to authorize transfer of property and franchises of public utilities, expressly includes the provisions of Const., Sec. 220, providing that no person, firm, etc., shall be authorized or permitted to use streets or public places of any city or town for the construction or operation of a public utility or private enterprise without the consent of the proper authorities of such city or town. Held, that neither the constitutional provision nor an objection on the part of a city would affect the powers of the commission under said act to determine whether a conveyance of the property of a public utility together with its franchises was “consistent with the interests of the public;” but the question of the city’s power to veto the proposed transfer must be tried in the customary courts, since while the commission exercises a quasi judicial power, it does not enforce rights or redress wrongs, but is only authorized to ascertain a fact upon which a statutory license depends.</p> <p>5. Constitutional Law; Special Privileges; Franchises in Streets. — The assent of the public service commission under Acts 1915, p. 268, to the sale of the franchise of a public utility using the streets of a city does not violate Const., Sec. 22, inhibiting any law making an exclusive grant of a special privilege.</p> <p>6. Monopolies; Consolidation of Street Railroads; Assent of Public Service Commission. — The act of the public service commission under Acts 1915, p. 268, in assenting to a transfer of the franchise and property of a street railway, though it effected a consolidation of parallel and competing lines,_ is not violative of Const., See. 103, which requires that the Legislature provide by law for the regulation, prohibition, or reasonable restraint of common carriers, partnerships, associations, trusts, monopolies to prevent them from making scarce articles of necessity, etc., or prevent reasonable competition, since in the strictest sense of the word it does not create a “monopoly,” which is an exclusive right granted to one person or a class of persons of something which was before of common right.</p> <p>7. Street Railroads; Consolidation; Statutory Provisions. — -Code 1907, Sec. 3481, which permits the consolidation of railroad corporations only in case their lines admit the passage of cars continuously or without break or interruption directly or by means of intervening lines, construed with Acts 1915, p. 268, still remains in effect as evidencing the public policy of the state that in the absence of the approval of the public service commission there shall be no such consolidation, but has been limited by the act of 1915 to that extent.</p> <p>8. Public Service Commissions; Certiorari; Jurisdiction,. — On certiorari to review a proceeding of the public service commission approving the transfer of the property and franchises of a public utility under Acts 1915, p. 268, the supreme court has neither original nor appellate jurisdiction to pass upon the city’s objections to approval of the proposed consolidation.</p>

<p>Mandamus.</p> <p>1. Receivers; Suits Against Receiver and Sureties; Statutes. — Code 1907, Sec. 5730, authorizing a suit against any receiver appointed by any court in respect to any act or transaction of his in carrying on the business connected with the property in the state without previous leave of the court appointing him, does not apply to a suit against a receiver and sureties on his bond, in which case leave of the court to sue must first be obtained.</p> <p>2. Receivers; Liability of Sureties; Conditions Precedent. — The sureties a receiver’s bond are not liable until all remedies available against the receiver are exhausted, and their liability cannot be enforced until the default has been ascertained on the final settlement of the receiver’s account and a decree has established the receiver’s inability to pay.</p>

<p>Appeal from Marshall Circuit Court.</p> <p>Heard before Hon. W. W. Haralson.</p> <p>Action by Strong, Bagley & Bagley against J. R. N. Thompson for breach of contract. Judgment for plaintiffs and defendant appeals.</p> <p>(Transferred from the Court of Appeals under Acts 1911, p. 450.)</p>

.Appeal from Birmingham City Court. Heard before Hon. John H. Miller. Action by James Howard Whitlock, by next friend, against Dr. D. F. Talley. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. The facts and objections to evidence sufficiently appear. The following assignments of error are referred to: Second, third, fourth, and fifth — all of which treat of the question and answer of Drs.

Heard before Hon. C. W. Ferguson. Action by W. B. Travis against the Alabama Great Southern Railroad Company for damages for injury while an alleged passenger. Judgment for defendant, and plaintiff appeals.

Heard before Hon. A. E. Gamble. Action by Felix W. Beiser against Sovereign Camp of the Woodmen of the World upon a fraternal benefit insurance certificate. Judgment for defendant and plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. A. H. Benners.. Bill by Kate C. Adams as Administratrix against A. B. Adams as Trustees for an accounting for certain corporate stock pledged as collateral. From a decree overruling demurrers to the bill the respondent appeals.

Heard before Hon. Thomas W. Wert. Bill by M. A. Stockton and others against T. J. Russell and others to foreclose a vendor’s lien. Decree for complainants and respondent Russell appeals.

Heard before Hon. II. A. Sharpe. Petition by T. H. Harris against A. E. Walker, as Superintendent of Banks, for mandamus to said Walker requiring him in the payment of the dividend-to pay petitioner a dividend equal in proportion to that paid depositors who had not stipulated for interest. Decree for respondent, and complainant appeals.

Heard before Hon. A. B.'Foster. Suit by the Enterprise Cotton Oil Company against the Atlantic Coast Line Railway. Judgment for plaintiff, and defendant appeals. Suit by appellee to recover damages for failure to deliver a tank' of crude oil received by the defendant as a common carrier for shipment from Enterprise, Ala., to Portsmouth, Va. The oil was loaded on the cars by the plaintiff. The defendant filed several special pleas.

<p>Appeal from Blount Circuit Court.</p> <p>Heard before Hon. J. E. Blackwood.</p> <p>Ejectment by Russell & Johnson against the town of Oneonta. Judgment for defendant and plaintiffs appeal.</p>

Heard before Hon. W. W. Whiteside. Bill by Mary W. Thompson against the Bank of Tuskegee and others to enforce the payment of a monthly annuity upon real estate left by the testator. Decree sustaining demurrer to the bill, and plaintiff appeals.

<p>Ejectment.</p> <p>1. Appeal and Error; Discretion, of Court; Amendment; Reopening Case. —An amendment allowed in ejectment after closing testimony and making arguments, permitting a different description to be added to complaint, qnd allowing further testimony thereon, was within court’s discretion, which, not shown to have been abused, will be conclusive.</p> <p>2. Ejectment; Disclaimer. — Defendant’s disclaimer in ejectment suit, filed as permitted by Code 1907, Sec. 3843, was an admission of plaintiff’s title, with denial of defendant’s possession; and, where issue is not joined on this plea, plaintiff is entitled to judgment.</p> <p>3. Ejectment; Verdict; Responsiveness to Issue. — Verdict in ejectment, allowing recovery of certain lands, held not to define the boundary line, which was the sole issue involved, defendant having disclaimed possession and suggested a boundary dispute as permitted by Code 1907, Sec. 3843.</p> <p>4. Ejectment; Verdict; Designation of Boundary. — Verdict in ejectment, describing boundary as commencing at stake set by a certain man, although somewhat uncertain, cannot be said to be so unserviceable as to affect an otherwise sufficient verdict.</p> <p>5. Ejectment; Trial; Scope of Issue; Statute. — No issue of title or adverse possession is triable in an ejectment suit, where defendant files disclaimer and suggests a boundary dispute as permitted by Code 1907, Sec. 3843.</p> <p>6. Boundaries; Evidence; Surveyor’s Opinion. — A duly qualified competent surveyor may give his opinion as to the true location of the line between properties or as to divisions of land according to government calls.</p>

Heard before Hon. A. B. Foster. Bill by E. J. Burns against the Mortgage Bond Company of New York and others to redeem from mortgage-foreclosure sale with cross bill by respondent to foreclose. From a degree dismissing both the original and the cross bill complainant appeals.

Heard before. Hon. Ben D. Turner. Petition by Z. T. Cobb for mandamus against S. C. Garrett, as sheriff, to require him to return a certain replevy bond as forfeited, or else show cause why he could not do so. From an order granting the writ respondent appeals.

Heard before Hon. E. S. Lyman. Action by Leo Kayser against J. S. Bird as treasurer of Shelby county, and the sureties on his official bond, for the amount of interest due on certain warrants drawn by the county board of revenue on the county treasurer in favor of plaintiff’s assignor, A. T. Newell. Judgment for defendant and plaintiff appeals.

Heard before Hon. A. B. Foster. Bill by T. J. W. Harrell against H. Watson and the J. S. Carroll Mercantile Company.

Heard before Hon. J. H. Disque. Bill by J. L. Meeks and another against J. T. Leek and another to restrain and enjoin respondents from building to or attaching to the western wall of a certain building, and to restrain the use of the wall. Decree for complainants and respondents appeal.

Heard before Hon. H. A. Pearce. Ejectment by J. B. Long against R. F. Hall for twenty acres of land, part of the northeast quarter of section 20, township 6, range 29, lying east of Brady Mill Creek. Judgment for plaintiff and defendant appeals.

Heard before Hon. James E. Horton, Jr. Bill by Tennie S. Lampkin as administratrix against L. O. Stout and others to enjoin the foreclosure of a mortgage. From a decree dismissing complainant’s bills he appeals.

Heard before Hon. A. H. Benners. Bill by J. H. Spear against George B. Ward and others. From an order denying temporary injunction, complainant appeals. The following is the ordinance referred to in the opinion: Section 1.

Heard before Hon. Thomas W. Wert. Action by John G. Gray against the Louisville & Nashville Railway Company for damages for personal injuries. Judgment for plaintiff and defendant appeals.

Heard before Hon. Robert C. Brickell. Mandamus by the State on relation of Charles Derrick against J. W. B. Hawkins. From a judgment sustaining demurrers to the petition and dismissing the petition on failure of petitioner to plead further, petitioner appeals.

Heard before Hon. Saffold Berney. Mandamus by the State on the relation of Thomas L. Cook ■and others against J. M. Walsh and others as directors of the Mobile Towing and Wrecking Company to compel them to take the necessary steps to hold an annual meeting of the stockholders of the corporation. From a decree granting the writ the respondents appeal.

Heard before Hon. C. P. Almon. • Action by Willie Bearden, pro ami, against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Suit by appellee against appellant for recovery of damages sustained while in the employ of appellant at its iron ore mine in Franklin county.

Heard before E. C. CROW. Detinue by P. D. Martin against J. D. Brown and another. Judgment for defendants and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. The facts sufficiently appear.

<p>Appeal from Jefferson Chancery. Court.</p> <p>Heard before Hon. A. H. Benners.</p> <p>Bill by Rose Johns Cannon for homestead exemptions to be carved out of certain real estate left by her former deceased husband, upon the sale of same. There was decree for complainant and the heirs of the former deceased husband, L. W. Johns, appeal.</p>

<p>Injunction.</p> <p>1. Injunction; Enjoining Ejectment; Estoppel as Ground. — Where it was sought to condemn two tract's belonging to the same person, but the judgment, containing no description, but merely awarding damages in solido, was void as to one tract, because of the attempted description thereof in the condemnation pleadings being insufficient to describe any land, ejectment on his legal title by the owner thereof will be enjoined, on the ground of estoppel, because of his acceptance and retention of the damages awarded for the two tracts; and this though the condemnor has made no expenditure in improvements.</p> <p>2. Equity; Dismissal of Bill; Want of Equity. — Motion to dismiss for want of equity will be sustained only when admitting all the facts apparent on the face of the bill, though illy pleaded, complainant can have no relief.</p> <p>3. Injunction; Dissolution. — Dissolution of injunction will be allowed only on want of equity in the bill, or the denials of a verified complaint; technical errors or inaccuracies not availing.</p>

<p>Bill to Cancel Mortgage and to Quiet Title.</p> <p>1. Appeal and Error; Review; Findings of Chancellor; Statute. — Code 1907, section 5955, subd. 1, providing that on chancery appeal no weight shall be given chancellor’s decision upon facts, but Supreme Court shall weigh the evidence, applies only where the judge trying the issue had not the advantage of seeing the witnesses.</p> <p>2. Appeal and Error; Findings of Chancellor; Presumption; Statute.— The Legislature intended by enactment of Gen. Acts 1915, p. 705, providing for the taking of oral testimony before chancellor, the same presumption by Supreme Court in favor of chancellor’s findings as are accorded to those of a register under construction of Code 1907, section 5955, subd. 1.</p>

Heard before Hon. A. H. Benners. Bill by the E. & W. Dry-Cleaning Company, a corporation, against the American Laundry Company, to enjoin the violation of contracts. From a decree overruling demurrers to the amended bill, respondent appeals. The substance of the original bill sufficiently appears.

Heard before Hon. H. A. Sharpe. Action by I. A. Kronenberg, as assignee, against the Southern States Fire Insurance Company of Birmingham, upon a 'fire insurance policy. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. C. B. Smith.</p> <p>Action by J. M. Flinn against the Alabama Great Southern E. E. Company for damages for injuries suffered while in its ■employment. Judgment for plaintiff and defendant appeals.</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Action by the National Park Bank of New York against the Louisville & Nashville Railroad Company for fraud and in assumpsit. Demurrers were sustained to several counts of the complaint whereupon plaintiff took a non-suit and appeals.</p>

Heard before Hon. Samuel B. Browne. Ejectment by Roswell S. Nance against Robert G. Walker. Judgment for defendant, and plaintiff appeals. The action was originally for forcible entry and detainer,. and was removed to the circuit court by defendant, under the statute as one claiming to have entered upon the land peaceably and under claim of title thereto.

<p>Appeal from Jackson Chancery Court.</p> <p>Heard before Hon. JAMES E. HORTON, Jr.</p> <p>Bill by Maria J. Card against H. M. Cunningham to abate a nuisance. Judgment for respondent and complainant appeals-</p>

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Action by Clayton Boggs against the Louisville and Nashville Railroad Company for damages for ejection of him as a passenger. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals under Acts 1911, p. 450.</p>

<p>Divorce and Alimony.</p> <p>1. Divorce; Decree; Sufficiency of Evidence. — Evidence showing husband’s habits as to use of intoxicants, threats, and violence to the wife and conviction for assault and battery upon her, held sufficient for granting of a divorce decree under Code 1907, § 3795, allowing such decree for husband’s cruelty.</p> <p>2. Divorce; Condonation; Conditioned on Husband’s Conduct. — Condonation by wife because of her return to husband upon his promises to accord her proper treatment is always conditioned upon his conduct.</p> <p>3. Divorce; Condonation; Acts Constituting. — Where, after separation for husband’s cruelty, the wife returned and lived with him for two months upon his promise to accord her proper treatment, which promise Was not kept, there was no such condonation as will defeat the allowance of divorce decree to her.</p> <p>4. Divorce; Permanent Alimony; Excessive Amount. — Where husband, aged 47, owned a farm worth over $1,000, a store Worth over $500, and live stock, all unincumbered, and had an income between. $500 and $1,000, and wife owned a small farm given her by her father, award of $200 annually as alimony, held not excessive where the decree was left subject to modification.</p>

Heard before Hon. John H. Miller. Action by Minnie Reynolds, as administratrix, against the Woodward Iron Company, for damages for the death of her intestate. Judgment for defendant, and plaintiff appeals. The facts, as well as some of the written charges refused to defendant, sufficiently appear.

<p>Quo Warranto.</p> <p>Judges; Vacancies in Office; Holding by Appointee. — Under Const. 1901, § 155, fixing,_ “except as otherwise provided in this article,” term of office of judge at six years, section 156, providing for' some of the Supreme Court justicés elected in 1904 holding for only two years and others of them only four years, and section 158 providing that vacancies in the office of judge shall be filled by appointment, the appointee to hold his office till the next general election held at least six months after the vacancy occurs, and till his successor is elected and qualified, the successor chosen at such election to hold for the unexpired term and till his successor is elected and qualifies, however many vacancies occur during a regular term, and whenever they occur, one appointed to a vacancy can hold only to the end of the original six-year term; a successor being then elected and qualifying.</p>

<p>Assumpsit.</p> <p>1. Executors and Administrators; Action by; Admissibility of Evidence. ■ — Where, upon a son’s death, the father took possession of money found in his possession and disposed of part of it to certain persons, in action by son’s administratrix to recover it, it was error to refuse to allow'the father to show that the money actually belonged to such persons.</p> <p>2. Property; Evidence as to Title; Possession, — Possession of property alone and without explanation is presumptive evidence of ownership, which may be overcome by other evidence.</p> <p>3. Executors and Administrators; Property Found in Decedent’s Possession; Presumption. — Personal property found in decedent’s possession or under his control at time of death is presumed to belong to him, but this presumption is rebuttable.</p> <p>4. Executors and Administrators; Action by; Admissibility of Evidence. —In action by administrator to recover money found in decedent’s possession and taken by his father, it was proper to permit the father to show that part of the money was used in paying funeral expenses.</p> <p>5. Executors and Administrators; Assets; Expense of Last Sickness. — In view of Code 1907, §§ 2597, 2598, providing that expenses of last sickness are preferred claims against an estate, but that no preference will be given among debts of same class, if amount found in son’s possession taken by :father, part of which was paid for physicians summoned before it was known -the son was dead, was reasonable and necessary, and other preferred claims would not be prejudiced thereby, the father was entitled to such deduction.</p>

Heard before Hon. Leon McCord. Petition by the State on the relation of Perry W. Turner against Charles Henderson as Governor of the State for mandamus to require the Governor to approve a certificate for services. From a judgment sustaining the demurrers to the petition relator appeals.

Heard before Hon. John C. Pugh. Action by Sarah Dank against H. L. Bains. From a judgment for plaintiff, defendant appeals. Transferred from Court, of Appeals under section 6, Acts 1911, p. 450. .In the first count of the complaint the plaintiff (appellee here) sought recovery of damages for injury to her personal property, and also to her person, occasioned by a rainfall through the roof of the house she occupied in the city of Birmingham.

G. O. Johnson was convicted of violating the prohibition laws and appealed to the Court of Appeals where his case was reversed. (See 15 Ala. Appeals 75, 72 South. 561.) The State brought certiorari to this court to review and revise that opinion.

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Quo warranto by the State on the relation of C. C. Wiley against the board of Revenue of Jefferson County. Judgment for relator and respondent appeals.</p>

Heard before Hon. C. P. Almon. Action by Margie K. Harris, as administratrix, against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. The pleadings and the facts sufficiently appear.

Heard before Hon. John C. Pugh. Action by Sallie Sloan against the Birmingham Railway, Light & Power Company, for damages for injuries resulting from a collision while she was a passenger on one of its cars. Judgment for plaintiff, and defendant appeals. In his opening argument to the jury counsel for plaintiff says: You should give $20,000 in this case. If you give only $2,000, they will save it in 30 days.

Heard before Hon. JOHN H. DlSQUE. Action by the Abramson-Boone Produce Company, suing for J. M. Smith and Company, against the Nashville, Chattanooga & St. Louis Railway for damages for injury to freight. Judgment for plaintiff and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. Thomas H. Smith. Bill for partition by N. N. & T. J. Powell against A. G. Richardson and others. Decree for complainants, and respondents appeal. The caption is as follows: A transcript of the record and proceeding had in a certain cause pending in the circuit court of Washington county, state of Alabama, therein lately pending, wherein N. N. and T. J. Powell were complainants and A. G. Richardson and others were defendants.

<p>Appeal from Washington Circuit Court.</p> <p>Heard before Hon. Ben D. Turner.</p> <p>Quincy Day was convicted of murder in the first degree and he appealed.</p>

Heard before Hon J. S. Williams. Action by George H. Dent and others as citizens and taxpayers of the City of Eufaula against the City of Eufaula and the municipal authorities to enjoin the issue and sale of municipal bonds. Decree for respondents and complainants appeal.

Heard before Hon. C. P. Almon. Action between W. M. Shotts and J. W. Cooper and others. From a judgment for the latter, the former appeals. The cause was tried on the second count of the complaint, which was in trover for the conversion by defendant (appellant here) of four bales of lint cotton, and on the plea of the general issue thereon. No question was raised as to the charge of conversion by defendant.

Heard before Hon. C. B. Smith. Proceedings by the State on the relation of Joseph R. Tate, Solicitor, against B. E. McGehee to oust him from .the office of Notary Public and Ex-Officio Justice of the Peace. Decree for relator and respondent appeals.

Heard before Hon. Thomas H. Smith. Bill by Bernadine Spafford against Ralph B. Spafford for alimony without divorce. From a decree overruling demurrers to the bill, defendant appeals. Bill by the wife, appellee here, against the husband for alimony alone. The bill shows both parties to be over the age of 21 and residents of the city of Mobile, Ala., and their marriage on October 28, 1915.

Petition for mandamus filed in this court by R. B. Spafford against the Chancellor of the Southwestern Chancery Division to require him to set aside an order for reference as to separate maintenance for alimony pending the suit.

Heard before Hon. Oscar S. Lewis. Bill by J. W. Baker against A. E. Walker, as Superintendent of Banks, and another. Decree for complainant, and defendant ■ Walker appeals. Bill by appellee against A. E. Walker, as superintendent of banks, and the People’s Bank & Trust Company of Atmore, Ala., seeking to have canceled as a cloud on title a mortgage and foreclosure deed executed by complainant and his wife to the said bank and trust company.

Heard before Hon. O. J. Sbmmes. Petition by F. E. Matson for a writ of mandamus against E. D. Laurendine, as Tax Assessor for Mobile County. Writ denied, and plaintiff appeals.

<p>Appeal from Covington Circuit Court.</p> <p>Heard before Hon. A. B. Foster.</p> <p>Tom Hodge was convicted of murder and he appealed.</p>

Heard before Hon. H. A. Sharpe. Proceedings by the State of Alabama on the relation of Zell . Gaston against Hugo Black as Solicitor and on the relation of Joseph R. Tate as Solicitor against William E. Fort, Judge, for mandamus and quo warranto, wherein Joseph R. Tate as Solicitor of the tenth judicial circuit makes a motion.

Heard before Hon. W. W. Pearson. Action by W. R. Burnett against the Alabama Power Company for damages for overflow and otherwise. Judgment for •defendant, and plaintiff appeals.

' Heard before Hon. Gaston Gunter. Action by the State of Alabama against the Montgomery Savings Bank to recover a hundred thousand dollars, Convict Bureau default. From an insufficient judgment for plaintiff it appeals. Affirmed. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. Leon McCord. Bill by Mrs. M. R. Jordan against the Bank of Tallassee and the Peoples’ .Saving Bank of Tallassee to foreclose a mortgage executed by the latter bank. Decree for complainant and respondents appeal.

Heard before Hon. W. W. HARALSON. Action by E. A. Fisher against the Southern Railway Company for damages for injuries sustained while in its employ, brought under the Federal Employers Liability Act. Judgment for plaintiff and defendant appeals.

Heard before Hon. Jaímes E. Horton, Jr. Bill by Theobold Mauter against the Louisville & Nashville Railroad Company to abate a public nuisance, the obstruction of a public street. From a decree overruling demurrers to the bill respondents appeal.

Heard before Hon. Gaston Gunter. Suit in detinue by George Eiley against Henry Hatfield. Judgment for the plaintiff and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. ThoMas H. Smith. ■ Bill by the Alabama, Tennessee and Northern Railway Company against the Aliceville Lumber Company and others, to enjoin actions at law, with cross-bill by respondent. From a final decree for respondents complainant appeals. The final decree directed to be set out is as follows: There are two systems under which an issue is had out of chancery.

<p>Murder.</p> <p>1. Criminal Law; Argument of Solicitor; Race Prejudice. — In a prosecution for murder, statement of solicitor, “If you do not hang this negro, you will have a similar crime in this county in six months,” was improper and prejudicial, being an appeal to race prejudice.</p> <p>2. Criminal Law; Improper Remarks by Solicitor; Correction by Charge. —In a prosecution for murder, solicitor’s remarks in his opening argument, “If you do not hang this negro, you will have a similar crime in this county in six months,” held not cured by a later charge, to effect that jury were not to consider remarks for state in reference to white and black races, although it would not arouse passion of ordinary intelligent persons.</p> <p>3. Criminal Law; Appeal and Error; Prejudicial Remarks in Charge by" Court. — In a prosecution for murder, opening remarks in charge, “For the first time in the history of this court since the appointment of an official stenographer, so far as I am advised, the judge of the court has been requested to render his charge to the jury in writing,” held reversible error, being a reflection on defendant, who under Code 1907, section 5363, was entitled to a written charge.</p>

Heard before Hon. Charles W. Ferguson. Actioh by Anna Boswell, as administratrix*, hgainst the Woodward Iron Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. Count 8 is under the first' subdivision of the Employers’ Liability Act (Code 1907, § 3910), and declares for a defect in the furnace. Count A sufficiently appears.

<p>Appeal from Walker Circuit Court.</p> <p>Heard before Hon. J. J. CURTIS.</p> <p>Ed Wright sued the Empire Coal Company and had judgment, which was set aside on motion of the defendant, and a new trial granted, from which latter order plaintiff appeals.</p>

Heard before Hon. Leon McCord. Petition by the State of Alabama on the relation of James R. Daly against Charles Henderson as Governor for mandamus to require the payment of certain expenses. From a judgment sustaining demurrer to the petition relator appeals.

Heard before Hon. J. C. B. GwiN. Assumpsit by J. G. Keller against the Woodward Iron Company. Judgment for plaintiff for less than the jurisdictional amount and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. F. J. Dean. Contest by John T. Price of the probate of the will of David Price by C. W. F. Price. From a degree denying probate, proponent appeals. Contest of probate of the will of one David Price, deceased. The cause was tried before the probate judge without the intervention of a jury, and decree rendered to the effect that the instrument offered for probate was not in fact the last will and testament of said deceased, and probate thereof was denied.

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. J. H. Miller.</p> <p>Action by A. J. Terrell against Frank Nelson and others. Judgment for defendants and plaintiff appeals.</p>

Heard before Hon. B. M. Miller. Action by the Western Union Telegraph Company against the Louisville & Nashville Railroad Company to condemn an easement along its right of way for telegraph line of complainant. From a judgment denying the petition complainant appeals.

Heard before Hon. Henry B. Foster. Petition by the State of Alabama, on the relation of W. W. Brandon, and others, for quo warranto to determine if A. F. Prince and others constitute the Jury Commissioners of Tuscaloosa County, and to inquire by what authority they hold said office. From a decree refusing to grant said writ, relators appeal.

Heard before Hon. James E. Horton, Jr. Bill by B. R. Shaw against W. B. Lacy to have a deed absolute in form declared a mortgage and to redeem therefrom. Decree for respondent, and complainant appeals. The. bill alleges an indebtedness due from Shaw to Lacy, and the execution by Shaw to Lacy of a mortgage upon certain lands therein described of date December 2, 1911, for the consideration of $1,000.

Heard before Hon. R. C. Brickell. Action by P. E. Williams as administrator of the estate of' W. M. Williams, deceased, against the Louisville & Nashville Railroad for damages for the death of his intestate. Judgment for plaintiff and defendant appeals.

Heard before Hon. H. B. Foster. Action by Tena Bishop, by next friend, against the Big Sandy Lumber Company, for injuries sustained while in its employment. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear.

<p>Appeal from Lauderdale Probate Court.</p> <p>Heard before Hon. J. F. Koonce.</p> <p>From a decree confirming homestead allotment as reported by the commissioners Thomas W. McDaniel appeals.</p>

Heard before Hon. A. H. Benners. Bill by the Standard Coal Company against Annie W. Weisel and others to enjoin the collection of a judgment and to set-off an alleged indebtedness. Decree for respondent and complainant appeals.

Heard before'Hon. Ben D. Turner. Suit by Thomas Parnell against the Southern Railway Company for damages for setting out fire. Judgment of non suit on demurrer to the complaint and plaintiff appeals.

Heard before Hon. James E. Horton, Jr. Bill by Lizzie B. Woodruff against J. R. Satterfield and others to cancel mortgage and so forth. Decree for respondents and complainant appeals.

<p>Appeal from Colbert Circuit Court.'</p> <p>Heard before Hon. C. P. Almon.</p> <p>Statutory ejectment by Fanny R. Blair against H. W. Blair Judgment for plaintiff and defendant appeals.</p>

Heard before Hon. E. C. Crow. Mandamus by the Empire Mining Company against D. E. McLendon as Tax Assessor and the Tax Collector and Members of the Board of Equalization of Jefferson County relative to entering tax valuation. From an order granting the mandamus defendants appeal.

<p>Appeal from Bessemer City Court.</p> <p>Heard before Hon. J. C. B. GwiN.</p> <p>Bill by J. F. McPherson and others against J. E. Walker and others to determine title to church property. Decree from complainants and respondents appeal.</p>

<p>Appeal from Marion Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p> <p>Bill by Marvin Pearce, as executor, against Clovis Pearce and others to construe a will. From a decree of the chancellor, this appeal is prosecuted by the proponent.'</p> <p>The will is as follows:</p> <p>Item 1. Payment of all just debts.</p> <p>Item 2. Bequest to Jim Pearce, Jr., of $5,000 to be made when he is 21 years old.</p> <p>Item 3. I will and bequeath to my grandson Clovis Pearce $5,000 as a special fund for his education. If I complete his education before my death, this sum is not to be paid to him. I will hereafter keep an account against my grandson Clovis, charging to him such items as I may deem proper, to be charged against his educational fund, and if I should die before his education is completed, my executor is authorized and directed to spend any balance of said sum upon the education of my grandson Clovis. No part of this sum is to be charged against my grandson Clovis as a part of his distributive share in my estate. If, for any reason, my grandson Clovis does not exhaust said sum, the balance so unexpended shall be converted to my general estate. My executor is directed to pay either directly to my grandson Clovis or to such person as he may determine such reasonable amount for each year’s expenses, as he deems fit, provided said payment shall not, in the aggregate, exceed the amount of $5,000, inclusive of the amount charged by me against his educational fund, prior to my death.</p> <p>Item 4. I will and bequeath to my son Marvin Pearce one-half of the remainder of my estate, both personal and real. I will and bequeath to my grandson Clovis one-fourth of my estate, left after paying the bequest herein made to my grandson Jim, Jr., and the educational fund provided for my grandson Clovis, and in addition to- said one-fourth, I will and bequeath to my grandson Clovis $5,0CO to be charged against the interest of my grandson Joe, as herein provided. My executor may pay this $5,000 to Clovis upon his reaching the age of 21 years, if in his judgment, his habits are good, and his judgment sufficient to handle said sum of money. If he thinks it is best for the said Clovis, on account of his habits, to retain said money until he is 25 years of age, he is authorized to do so. I will and bequeath to my grandson .Joe one-fourth of my estate left after deducting the special bequests made to my grandson Jim, Jr., and Clovis Pearce’s educational, fund. There is also to be deducted from the one-fourth interest of my grandson Joe the sum of $5,000 which is hereinafter bequeathed to my grandson Clovis. It is the purpose and intention of this item that my grandson Clovis, in additiona to the educational sum herein provided, shall have $5,000 more, to be deduced from the share of my grandson Joe.</p> <p>Item 5. In the event of the death of my grandson Joe, without issue born to him, before the settlement of my estate, I will and bequeath the interest in my estate hereby willed to him, to my grandson Clovis. In the event of the death of my grandson Clovis, without issue born to him before the settlement of my estate, I will and bequeath the interest willed and bequeathed to him herein to my son Marvin.</p> <p>Item 6. I will and direct that my executors hereiafter named and appointed take charge of my entire estate, real, personal and of whatever nature, and reduce the same to cash in such a way, and in such quantity, and on such terms, and at such a time or times, as he in his sound discretion may think to be to the best interest of my estate.</p> <p>Item 7. Authorizing the sale and exchange of land and the purchase of other land, in the sound discretion of the executor.</p> <p>8. Authorizing the executor to sell any property in any way as seems to him best, and to execute deeds and other contracts.</p> <p>Item 9. Exempting the executor from making reports to courts, and to do the things herein willed, without the order or direction of any court.</p> <p>10. Exempting from bond.</p> <p>11. My executor is hereby directed and required to keep the part of the estate of my grandson Clovis together, until he is 25 years old, and my grandson Joe’s part of the estate together until he is 25 years old. After such bequests as hereinbefore stated in this, my last will and testament, have been made.</p> <p>12. Directing the executor to handle Clovis and Joe Pearce’s part of the estate mentioned at the age of 25, should either Clovis or Joe become incompetent from insanity, or any other cause, and that they have such a part of their estate from time to time as may be necessary, for their comfortable sustenance.</p> <p>18. Appointing Marvin Pearce executor, and in case of his incompetency, appointing Largus M- Pearce to act as executor for my grandsons Clovis and Joe.</p> <p>14. Fixing compensation of executor on all receipts and all disbursements.</p>

Heard before Hon. W. W. Haralson. Action by Pleas Larkin and others in forciblé entry and detainer against W. P. Shelton. Judgment for plaintiff and defendant appeals.

Heard before Hon. James E. Horton, Jr. Bill by Thomas H. Warren against W. W. Cameron, individually and as State Live Stock Cattle Inspector and Quarantine Officer for Morgan County, and others, seeking a temporary injunction, restraining respondent individually and as such officer from the further dipping of orator’s cattle or interfering with him in the disposition of said cattle, until a hearing of the cause, and that on a final hearing the injunction be made permanent.

Heard before Hon. Lum Duke. Action by Maud Walker against John Smith, T. Judgment for the defendant, and plaintiff appeals. Suit by appellant (plaintiff in court below) against the defendant for recovery of damages sustained by her in a fall on the sidewalk in front of defendant’s mercantile store, or warehouse, in the city of Opelika. Jury and verdict for the defendant.

Heard before Hon. Robert C. Brickell. Action by Homer Blankenship, by his next friend, against the Louisville & Nashville Railroad Company, under the federal Employers’ Liability Act, for damages for injuries while engaged in its employment. Judgment for plaintiff, and defendant appeals. The facts sufficiently appear.

Heard before Hon. John H. Disque. Action by Man Thornton against the Southern Railway Company for damages for the death of his intestate. Judgment for defendant and plaintiff appeals.

Heard before Hon. R. C. Brickell. Velma Haceslip had judgment against John B. Shelton for damages for malpractice. Defendant made motion for new trial which was denied and he appealed.

Heard before Hon. A. B. Foster. Action by R. H. Trammell against the Jackson Lumber Company. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Clay County Court.</p> <p>Heard before Hon. E. J. GARRISON.</p> <p>Bill by A. B. Mayo against Tempie Mayo for divorce. From a decree granting divorce respondent appeals.</p>

Heard before Hon. James E. Horton, Jr. Bill by Houston Burgess and others against W. P. Burgess and others to remove an administration from the probate to the chancery court and to charge the administrator the funds, etc. Decree for complaniants and respondents appeal.

Heard before Hon. J. S. Williams. The State on the relation of J. W. Dedge sought in the justice court against Ben Edmunds to condemn and destroy certain in-' toxicating liquors. There was judgment of forfeiture and order for destruction of liquor, whereupon the defendant appealed to the circuit court, where the judgment of the justice court was' affirmed, and defendant, appealed here.

Heard before Hon. J. S. Williams. Proceedings by the State of Alabama, on the relation of J. W. Dedge, under the temperance act, for the seizure and condemnation of contraband liquors stored in the city of Girard by one William Cogbill in a building not a warehouse, and owned by said Cogbill. with claim interposed thereto by the Theatrical Club, a corporation. From a decrée of condemnation, the claimant appeals.

Heard before Hon. J. S. Williams. Proceedings by the State of Alabama on the relation of J. W. Dredge for condemnation and destruction of certain intoxicating liquors to which A. L. Gullat interposed a claim. There was judgment of condemnation in the justice court and claimant appealed to the circuit court where the judgment was affirmed and from that order he appealed.

Heard before Hon. JAMES E. Horton, Jr. Bill by S. E. Stewart against Laura E. Skidmore and her husband to foreclose a mortgage. From a decree for complainantj respondents appeal. The mortgage was overdue, and was given to secure a promissory note of even date, and was given on the crops, stocks, and lands.

Heard before Hon. Hugh D. Merrill. Action by Nannie Ellison as Administratrix, etc., against the Central of Georgia Railway Company, for damages for the death of her intestate. Judgment for plaintiff and defendant appeals.

Heard before Hon. James E. Horton, Jr. Bill to abate a nuisance by the City of Florence against the Florence Land Company. From a decree for complainant on demurrer, respondent appeals.

<p>Assumpsit.</p> <p>1. Abatement and Revival; Dismissal of Other Action Pending. — The second action between same parties for same cause in a court of competent jurisdiction will not be abated for pendency of the first action if first is dismissed before filing of plea in abatement in second; but this rule will not be extended to cases where the discontinuance of the first action occurred after filing of plea in abatement of the second action.</p> <p>2. Abatement and Revival; Waver of Grounds of Abatement. — The filing of interrogatories by defendant as provided by Code 1907, section 4049, does not operate as a waiver of grounds of abatement alleged.</p> <p>3. Pleading; Plea in Abatement; Action Pending in Federal Court; Sufficiency of Plea. — Amended plea in abatement alleging pendency of another action in Federal court was deficient in not alleging pendency of such action at time of filing original plea in view of. Code 1907, sections 5366, 5369, providing that amendment of such plea relates back to date of filing of the original plea.</p> <p>4. Abatement and Revival; Action Pending in Federal Court. — The pendency of an action between same parties and for same 'cause in a United States District Court is cause for abatement of subsequently instituted action in a state court.</p>

Heard before Hon. E. C. CROW. Action by Bert Loveless against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. The facts are, as gathered from the record: That appellant was injured by a piece of- metal striking him in the eye, while engaged in repairing the car in the shops of defendant at Boyles, Ala. The injury occurred on or about July 10, 1914.

Heard before Hon. T. L. Borum. Action by W. B. Sanders and another against Henry J. Harris in assumpsit. From an order declining to permit plaintiff to amend his complaint and dismissing his case, plaintiff appeals. Transferred from the Court of Appeals under Acts 1911, p. 450.

Heard before Hon. Hugh D. Merrill. Action by Estella Wilson Buye, as administratrix of the estate of Lonnie Wilson, deceased, against the Alabama Marble Quarries, a corporation. Judgment for defendant, and plaintiff appeals. The intestate was killed by several slabs of marble sliding on him from a stack of slabs, against which he was standing, the slide being caused by the impact of a mud box being hoisted on a cable.

Heard before Hon. D. W. Speake. Action by June Irwin against Tom Strain. Judgment for plaintiff and defendant appeals. Submitted on motion to dismiss appeal. Transferred from Court of Appeals under Acts 1911, p. 450.

<p>Equity Proceeding.</p> <p>Appeal and Error; Remand; Pleading; Amendment; Statute. — Under Code 1907, section 3126, .providing that amendments to bills must be allowed at any time before final decree, by striking out or adding new parties, and to meet any state of evidence which will authorize relief, the time limit to the right of amendment is the rendition of the final decree, and amendment to a bill, proper in itself, within the lis pendens, may be allowed even after reversal and remand on appeal.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. H. A. Sharpe.</p> <p>Assumpsit by the North Ontario Packing Company against the Napier-McCall Company and others. Judgment for defendants and plaintiff appeals.</p>

<p>Bill to Enforce Vendor’s Lien.</p> <p>1. Vendor and Purchaser; Vendor’s Lien; Enforcement; Laches and Stale Demands; Lapse of Time. — The equitable remedy to enforce a vendor’s lien is not stale, and is not barred by lapse of time until the expiration of 20 years after the purchase money became due and payable.</p> <p>2. Vendor and Purchaser; Vendor’s Lien; Enforcement; Laches and Stale Demands; Lapse of Time. — Such rule is not rendered inapplicable or ineffeetual because of the fact, or its absence, that the legal title to the land passed at the time the obligation to pay the purchase money was created.</p> <p>3. Equity; Bill; Allegations of. Fact or Conclusions. — In an action to enforce a vendor’s lien in equity, allegation in the bill that the complainant is the owner of the note and debt constituting the basis- of the vendor’s lien asserted is sufficient; being' the averment of an ultimate fact, and not of a coñelusion of law.</p>

<p>Appeal from Marshall Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p> <p>Suit between the Bank of Guntersville and Earl M. Crayter. From a decree in favor of Crayter, the bank appeals.</p> <p>This is a contest in chancery between the appellant bank and the appellee as to moneys or funds deposited in the bank by one J. L. Burke, an agent of appellee, and who was also a debtor of, and depositor in, the appellant bank.</p> <p>The funds were deposited by Burke in the bank, the deposit being entered in the name of “J. L. Burke, Agent,” and a part thereof was drawn out on checks signed, “J. L. Burke, Agent,” and these checks or the proceeds thereof were paid to appellee.</p> <p>There is no dispute that the deposited moneys belonged to appellee, and that they were sent to Burke, as an agent, to be lent out for the benefit of appellee, nor that some of the funds were so lent out and the proceeds paid to appellee.</p> <p>While it is not shown that the bank had any direct notice that the specified deposits were the funds of appellee, it is shown that the bank knew that Burke was a loan agent, and was lending moneys of his clients, and, as such agent, was making deposit of the funds received by him in such capacity, in the appellant bank.</p> <p>Burke was a debtor of the bank to the amount of $550, as evidenced by his two notes,' one for $300, due November 12, 1914, on which one H. C. Henderson was surety, and one for $250, due November 28, 1914, on which one Gordon Gilbreath was surety. Burke died on the 4th day of October, 1914, before either note was due; and on the 20th day of October, 1914, the bank applied enough of the funds deposited by J. L. Burke, agent, to pay these notes.</p> <p>On the 28th day of October, 1914, eight days after the bank had thus applied.the funds on deposit to the payment of the two notes, but before either note was due, appellee gave the bank written notice that the funds so deposited were the money of appellee.</p> <p>The chancellor decided that the application of the funds to the payment of the notes was wrongful, and that, as between the parties, the funds belonged to appellee; and respondent appeals.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. John C. Pugh.</p> <p>Action by H. E. Shropshire against George B. Kelly and others. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450, § 6.</p> <p>The complaint claims damages for that during the months of September, October, and December, 1908, and February, 1909, plaintiff entered into an agreement or contract with defendants, whereby defendants undertook to make a certain survey of lands owned by plaintiff and another, and to make a map and subdivision of said land to be placed on record, and whereby certain lands were dedicated or intended to be dedicated to the public for public highways, with lots abutting on the lands so dedicated, and defendants were engaged in the business of civil engineering, among other things, and held themselves out to the public as being skilled in such profession, and as having skill and ability in that regard, and at the time of entering into said contract, plaintiff agreed to pay defendants certain moneys as a reward for their services, and it thereby became the duty of defendants to exercise care to perform said work in a skillful manner, and to do said work correctly, and to survey said lands correctly, and to make a correct map of the same, but plaintiff avers that defendants were so negligent in that regard that they made a map of said lands owned by plaintiff, which said map was not correct, and which said map defendants negligently certified to be correct, whereby plaintiff placed said map on record, and as the result of said errors, mistakes, and negligence on the part of defendants, plaintiff was put to great expense, annoyance, and inconvenience in having new maps made correctly, and in rewriting deeds and mortgages and conveyances, and other injuries not necessary to be here set out. Defendants interposed the general issue and the statute of limitation of six years; also pleas of res judicata, setting up that these defendants individually and as partners sued said H. E. Shropshire upon an account by reason of the very contract which is referred to in the complaint, and in answer to said complaint said Shropshire filed a plea of recoupment, which plea is set out in full; and it is averred that in said plea of recoupment said Shropshire claimed damages of $2,000, and' asked for judgment for the excess, setting up the same cause of action in his plea as is set up in this cause of action, based upon the same contract and the same alleged breach thereof; that the cause of action was tried before a judge and jury in a court of competent jurisdiction, and the issues were found in favor of plaintiff in that case, who are defendants in this case, and against the said H. E. Shropshire, who was defendant in that case, and who is plaintiff in this case.</p>

<p>Appeal from Limestone Chancery Court.</p> <p>Heard before Hon. James E. Horton, Jr.</p> <p>Sarah Garrett petitions for the custody of her daughter Mattie by writ of habeas corpus directed to William Mahaley. The chancellor denied the petition, and petitioner appeals.</p> <p>Petitioner is an unmarried woman 32 years of age, and has borne four children, of whom the subject of this suit is the youngest. She lives with her father, who is fairly well to do financially, and is able and willing to help petitioner in the nurture and- support of her child. Petitioner has no means of her own, but works crops on her father’s farm on shares. When the child Mattie was seven years old, she went to live with respondent and his wife, and continued to live with them more than two years, visiting petitioner occasionally during that time. About Christmas, 1915, petitioner'went to the home of respondent and took the child away, and in February, 1916, respondent went to the schoolhouse and took her back home with him. Petitioner says that, while she consented for the child to go and live with respondent, she did not give her to him or his wife, nor agree that she could live with them all the time. She denies that respondent is the father of the child. On the other hand, respondent says that petitioner gave the child to him and his wife, and that he is in fact her father. In this claim respondent is supported by the clear preponderance of the evidence. The child says she has been well treated by both her mother and her adopted parents, but expresses a preference to live with the adopted parents. Respondent and his wife have no children of their own, and are ready to regularly adopt Mattie and raise her as their own, and are able to care for her. Testimony was given ore tenus.</p>

<p>Appeal from Houston Chancery Court, ard before Hon. O. S. Lewis.</p> <p>Bill by G. W. Pilcher against T. M. Tucker, individually, and others. From the decree, the named defendant appeals.</p> <p>Bill by G. W. Pilcher against T. M. Tucker, individually, the Atlantic Compress Company, a corporation, and Young & Hughes, a partnership, seeking foreclosure of a mortgage executed by Tucker to complainant, and a sale of certain cotton to satisfy his lien.</p> <p>The bill shows the execution of the mortgage on December 24, 1914, and that it was given complainant to secure payment for 3,080 pounds of middling cotton, covering all crops of cotton grown by T. M. Tucker or under his direction during the year 1915, on land owned or controlled by him in Houston county, Ala. It was further shown that Tucker raised a crop of cotton in 1915 on lands owned or controlled by him on and before the date of the execution of the said mortgage, and that he gathered a portion of the cotton storing it in a warehouse in Dothan until sold; that he sold six bales of the cotton to Young & Hughes, who placed it in possession of the Atlantic Compress Company, and who now own it subject to complainant’s rights under said mortgage; that complainant made demand on Young & Hughes and the Atlantic Compress Company for the surrender of the said cotton prior to filing this bill, which demand was refused by each of the respondents; that as the mortgage was executed on December 24, 1914, which was prior to the time of planting the crop in 1915, complainant did not have the legal title, and therefore could not maintain an action of detinue, and a resort to a court of equity was necessary in order to reach and have, the cotton sold. The bill then seeks a foreclosure of the mortgage by a sale of the.cotton upon the order of the court, and a reference to ascertain the amount due; and if the proceeds of the sale are not sufficient to satisfy the mortgage indebtedness, the bill prays for a personal decree to be rendered in favor of complainant against the respondent Tucker for the deficiency. The mortgage is made an exhibit to the bill, and appears to have been filed for record in the probate office October 2, 1915.</p> <p>Respondent Tucker demurred to the bill for a want of equity as to him, and upon the further ground that this respondent had no interest in the cotton, and is therefore improperly joined as a party respondent. The demurrer was overruled.</p> <p>Subsequently decrees pro confesso were duly entered against each of the respondents, including Tucker. Testimony for the complainant was taken, establishing the averments of the bill. The cause was then submitted to the chancellor, as authorized by statute (Acts 1915, p. 606), and final decree rendered granting the relief prayed and ordering ■ a reference to ascertain the amount due on the mortgage. From this decree respondent Tucker prosecutes this appeal, assigning errors.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Heard before Hon. E. C. Crow.</p> <p>Assumpsit by E. L. Schillinger against C. A. Wiekersham. Because of adverse ruling plaintiff took a non-suit and appealed.</p>

Heard before Hon. W. W. Brandon. Final settlement by Samuel W. Clements as executor of the will of I. L. Collins, with contest of certain items by Mrs. Malissa Collins and others. From the decree rendered, the contestants appeal. The contest sought to charge the executor with interest on the total sum in his hands as such, because of a commingling of the funds with his own funds, and their use by him .in his individual capacity, and for failure to loan out the money.

Heard before Hon. Saffold Berney. • Assumpsit by E. Lutz against the Van Heynigen. Brokerage 'Company, a corporation. Judgment for defendant, and plaintiff-appeals. The facts and the cause of action are sufficiently stated in the opinion. Count 4 alleges that plaintiff did rely upon said representation and warranty, did make and enter into said charter party purporting to bind the' owners of the schooner Goldfield.

Heard before Hon. Thomas W. Wert. Action by W. E. Lynne against the Louisville & Nashville Railroad Company and others for damage to property by blasting. Judgment, for plaintiff and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 450.

<p>Appeal from Choctaw Circuit Court.</p> <p>Heard before Hon. Ben D. Turner.</p> <p>Action by the Lake Wood Company against W. P. Cooper. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals under Acts 1911, p. 450.</p>

Heard before Hon. E. J. Garrison. Bill by the town of Ashland against T. H. Radney, to abate and remove an alleged public nuisance. Decree for complainant, and respondent appeals.

Heard before Hon. A. H. Alston. Ejectment by Frost, McGehee & Co. against G. W. Eiland. Judgment for plaintiff, and defendant appeals. Suit in ejectment by appellee against appellant for 80 acres of land in Covington county. Upon conclusion of evidence the complaint was amended so as to include only 60 of the 80 acres, and affirmative charge given for the plaintiff, and judgment entered accordingly for said 60 acres.

<p>Assumpsit.</p> <p>1. Municipal Corporations; Streets; County Commissioners; Powers; Improvement of City Streets. — All highways in a city or incorporated town are streets, and in the absence of legislative limitation the municipality, and not the county commissioners, has exclusive jurisdiction over the same.</p> <p>2. Highways; Legislative Powers; Control of Highways of State. — The Legislature has the inherent power, in the absence of constitutional restriction, to control the highways of the state in or out of the limits of a municipal-corporation. ,</p> <p>3. Counties; Commissioners’ Court; Powers; Improvement of' City Streets; Payment. — Prior to September, 1915, movents under orders of commissioners’ court and under contract with the said commissioners made certain improvements within a city. In 1916 commissioners made an order allowing claims therefor. Later probate judge issued his warrant on county treasurer for the amount, which treasurer refused to pay. Acts 1915, p. 878, approved September, 1915, provides that courts of county commissioners can pay for construction of public improvements which may have been heretofore ordered by such court within a municipality within the county, and which remains unpaid because the commissioners or their predecessors had no authority to make such improvements. Held, that as services were rendered before approval of act, and warrants were issued in good faith, and county had received benefits, treasurer’s refusal was unauthorized, and a summary judgment could be entered on appropriate motion.</p>

Heard before Hon. O. S. Lewis. Bill by J. B. Bedsole against J. C. Bowdoin for the appointment of a receiver to take charge of certain crops growing and ungathered, and for general relief. Decree for complainant, and respondent appeals.

Original petition in Supreme Court. Petition by Elba Bank & Trust Company for mandamus to require the Hon. A. B. Foster as the trial judge, to set aside an order permitting the interposition of a demand for jury trial.

Clair Circuit Court. Heard before Hon. J. E. Blackwood. Action by Ellender Laney by her next friend against the Seaboard Air Line Railway Company for damages for personal injuries. Judgment for plaintiff and defendant appeals.

Heard before Hon. O. S. Lewis. Bill by the American National Bank of Pensacola against the Bank of Florala and A. E. Mann to enjoin respondent bank from foreclosing its statutory lien upon certain shares of stock owned by Mann in the Bank of Florala. Decree for complainant and the respondent bank appeals.

. Heard before Hon. Henry B. Foster. Assumpsit by P. B. Traweek, individually, and as adminis-. trator, against Sallie A. Hagler. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under section 6, Act 1911, p. 449. The action is for money had and received by defendant to the use of plaintiff, which was paid by plaintiff to defendant by mistake of fact.

<p>Appeal from Coosa Chancery Court.</p> <p>Heard before Hon. W. W. Whiteside.</p> <p>Bill by Henry W. Pond as administrator against W. T. Lessley to enforce a. vendor’s lien. Decree for complainant and respondent appeals.</p>

Heard before Hon. James E. Horton, Jr. Bill by B. S. Rice against Charles C. Rice and J. B. Farmer, seeking specific performance of a verbal contract of sale, subrogation, or the establishment of a lien in the nature of a resulting trust. Decree for complainant, and respondents appeal.

<p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Action by W. G. Grantland against the Tennessee River Navigation Company. Judgment for plaintiff and defendant appeals.</p> <p>Transferred from the Court of Appeals under Acts 1911, p. 450.</p>

Heard before Hon. W. W. Pearson. Assumpsit by J. A. Sager against the Robinson Lumber Company. Plaintiff had judgment in the justice court and also in the circuit court on appeal and defendant appeals therefrom.' Transferred from the Court of Appeals under Acts 1911, p. 450.

<p>Ejectment.</p> <p>1. Homestead; Right of Surviving Wife. — A surviving wife has no homestead rights in property conveyed by her husband in the manner prescribed by the Constitution and statutes.</p> <p>2. Ejectment; Availability of Defense. — In controversy over land between grantees and the grantor’s wife, who claimed under her homestead rights, the fact, that the deed was executed to hinder, delay, or defraud the grantor’s creditors is immaterial.</p> <p>3. Evidence; Admissibility of Evidence; Delivery of Deed. — In ejectment, where the only issue was whether a deed was delivered, a witness’ testimony that it was not delivered is incompetent, where she was allowed to state all facts bearing upon the issue.</p> <p>4: Evidence; Admissibility; Evidence. — In ejectment, where the grant- or^ wife claimed that his deed was not delivered within his lifetime, and this claim constituted the only issue, testimony regarding what family the grantor and his wife had is immaterial.</p> <p>5. Appeal and Error; Harmless Error. — In ejectment, any error in finding that a deed to the property involved was delivered to plaintiff is harmless, where he was entitled to recover in any event as the assignee of mortgages on such property.</p>

<p>Appeal from Montgomery Circuit Court.</p> <p>Heard before Hon. W. W. Pearson.</p> <p>Action by Henry Kelly and others against the United Brothers of America and Sisters of True Love upon an insurance policy. Judgment for plaintiffs and defendant appeals.</p> <p>Transferred from the Court of Appeals under Acts 1911, p. 450.</p>

Heard before Hon. John H. Disque. Bill by Susan A. Christopher, in her individual right and as executrix, against J. P. Shockley and others, to foreclose a mortgage. Decree for respondents, and complaint appeals. Complainant claims to foreclose a mortgage executed by one J. P. Shockley and wife, daughter and son-in-law, to her husband, William Christopher, in April, 1888, and recorded in May, 1888.

<p>Trover and Conversion.</p> <p>1. Trial; Instructions; Invading Jury’s Province. — Plaintiff testifying that a payment was made on agreement that it be applied on a certain account, defendant’s requested instruction that it was to be applied on another, in accordance with his testimony, invaded the province of the jury.</p> <p>2. Appeal and Error; Discretion of Court; Cross-Examination. — The extent of cross-examination resting largely in the trial court’s discretion, allowing question on cross-examination, if witness came there to testify, does not call for review.</p> <p>3. Witnesses; Credibility; Evidence of Good Character. — Proof of good character of witness may be given only after it has been in some manner impeached or put in issue, and not merely because his testimony conflicts with that of another.</p>

Limestone Chancery Court. Heard before Hon. James E. Horton, Jr. Bill by Elizabeth Smith against Ida Davis and others to cancel and annul a deed. From a decree denying relief complainant appeals.

Heard before Hon. J. P. Stiles. Georgia D. Gaither and another propounded for probate the will of Virginia Z. Siddons. There was contest by Lovick W. Phillips, with judgment for contestant, and proponents appeal. The facts sufficiently appear in the opinion here, and on former appeal.

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to Court of Appeals.</p>

<p>Certiorari to the Court of Appeals.</p>

<p>Certiorari to the Court of Appeals.</p>

<p>Certiorari to the Court of Appeals.</p>

<p>Appeal from Eussell Circuit Court.</p> <p>Heard before Hon. J. S. Williams.</p>

<p>Appeal from Birmingham City Court.</p> <p>Heard before Hon. A. H. Alston.</p>

<p>Appeal from Limestone Circuit Court.</p> <p>Heard before Hon. Robert C. Brickell.</p>

<p>Certiorari to the Court of Appeals.</p>